Hatch v. v. P. Fair Foundation, Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: JAMES R. DOWD; KATHIANNE KNAUP CRANE, P.J., and MARY RHODES RUSSELL
• Citation: Hatch v. v. P. Fair Foundation, Inc., 990 S.W.2d 126 (Mo. App. 1999)
• Decision Date: 16 March 1999
• Docket Number: 73280,Nos. 73279,s. 73279
• Parties: Loren Martin HATCH, Appellant/Cross-Respondent, v. V.P. FAIR FOUNDATION, INC. Respondent/Cross-Appellant, and Northstar Entertainment, Inc., Respondent/Cross-Appellant.

Page 126

990 S.W.2d 126

Loren Martin HATCH, Appellant/Cross-Respondent, v. V.P. FAIR FOUNDATION, INC. Respondent/Cross-Appellant and Northstar Entertainment, Inc., Respondent/Cross-Appellant.

Nos. 73279, 73280.

Missouri Court of Appeals,

Eastern District,

Division Two.

March 16, 1999.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 5, 1999.

Richard C. Witzel, David A. Dimmitt, Witzel, Kearns, Kenney & Dimmitt, Alan G. Kimbrell, St. Louis, for appellant/cross-respondent.

Thomas C. Walsh, Elizabeth C. Carver, St. Louis, for respondents/cross-appellants.

OPINION

JAMES R. DOWD, Judge.

This is an appeal and a cross-appeal from a judgment entered on a jury verdict in a personal injury lawsuit commenced by Loren Martin Hatch against defendants V.P. Fair Foundation, Inc. ("V.P.Fair") and Northstar Entertainment, Inc. ("Northstar") to recover damages for injuries Hatch suffered when Northstar failed to attach the bungee cord to the crane when he made a bungee jump. The jury awarded Hatch $5,000,000, finding V.P. Fair vicariously liable on a premises liability theory and Northstar liable on a recklessness theory. Hatch appeals from the trial court's grant of V.P. Fair's motion for judgment notwithstanding the verdict on his premises liability claim and from the trial court's entry of summary judgment on two of his other claims against V.P. Fair. He also appeals from the trial court's grant of summary judgment on his negligence claim against Northstar. In their cross-appeal, ¹ defendants claim that the trial court erred in submitting Hatch's recklessness claim to the jury and in defining recklessness for the jury. Defendants also contend that the trial court abused its discretion in overruling their motion for a remittitur of the jury's verdict. We reverse the judgment notwithstanding the verdict in favor of V.P. Fair and remand for entry of judgment against V.P. Fair in accordance with the verdict. In all other respects the judgment is affirmed.

I. Factual Background

V.P. Fair organizes an annual multi-day fair in downtown St. Louis to celebrate the Fourth of July. The fair offers a variety of events and activities, including air shows, musical performances, food stands, and amusement rides. In 1993, V.P. Fair contracted with Northstar for the provision of a bungee jumping ² attraction. On July 5, 1993, Hatch and a group of his friends arrived at the fair between 10:30 and 10:45 a.m. Although the fair and all of its activities were scheduled to open at 10:00 a.m., Northstar's employees had yet to arrive at the site. Hatch purchased a ticket to bungee jump and waited approximately fifteen minutes until Northstar's employees arrived and set up the attraction. Hatch was then called into a tent area where he was weighed and signed a log book. He also signed a document written by Northstar, entitled "Release and Waiver of Liability and Indemnity Agreement."

Hatch was then prepared for his bungee jump. He was to be the first jumper of the day. A Northstar employee placed a harness around Hatch's waist and ankles, and fastened the bungee cord to the harness. Hatch walked to the bungee cage where he joined Paul Murray, Northstar's jumpmaster, and a reporter and cameraman from a local television station. A crane lifted the bungee cage 170 feet above the ground, and Murray opened the cage door and straightened out the bungee cord inside the cage. Murray then directed Hatch to the front of the cage and told him that he was locked in and safe to jump. Unfortunately, no one had attached the bungee cord to the crane, and when Hatch leaped off the platform, he plunged 170 feet to the ground. Initially, Hatch fell head-first. Although not attached, the bungee cord momentarily snagged on the bungee cage and stretched out. Breaking loose, the cord recoiled and struck Hatch as it passed him. The force of the recoil apparently reversed Hatch's position so that his descent was upright. The bungee cord and tackle, together weighing between seventy-five and eighty pounds, reached the airbag first and partially deflated it prior to his landing. After landing feet-first in the airbag, Hatch was taken to the hospital. As a result of the fall, Hatch sustained serious injuries to his back, legs, and shoulders. A tape depicting the premises, the preparation for the jump, and the jump itself was shown to the jury.

At some point prior to the 1993 fair, Northstar adopted a safety manual. The manual was created by an association of bungee jumping businesses in an effort to provide safety guidelines for operating a bungee jumping attraction. The manual's safety procedures were largely ignored by Northstar's crew. The manual called for a crew of six, Northstar supplied only a crew of five; the manual specified that the controller must be twenty-five years old, Northstar's controller was eighteen years old; the manual required every piece of equipment to be inspected daily and recorded on a checklist, there was no record of an inspection on July 5, 1993, indicating that Northstar's employees either failed to inspect the equipment, failed to record the inspections, or failed to do both; the manual required a test jump before opening the bungee jump to the public, Northstar failed to conduct a test jump on the day of Hatch's fall.

After his fall, Hatch instituted this lawsuit against Northstar and V.P. Fair. The second amended petition consisted of eight counts and contained several theories of recovery. Count I of the second amended petition ("Careless Disregard--Joint Venture") sought damages from both defendants, jointly and severally, for negligence based on the theory of joint venture. Count II ("Negligence/Careless Disregard--Northstar Entertainment, Inc.") sought damages from Northstar for negligence in failing to take reasonable efforts to ensure the safety of the bungee jumping operation. Count III ("Negligence/Careless Disregard--V.P. Fair Foundation, Inc.") sought damages from V.P. Fair for its negligence in failing to inspect Northstar's bungee jumping operation to ensure that it was being operated in a reasonably safe manner. Count IV ("Premises Liability--Defendant V.P. Fair Foundation, Inc.") sought damages from V.P. Fair on a premises liability theory for negligence in (1) inviting the public onto its premises which were not in a reasonably safe condition for intended use, (2) failing to warn the public of the existence of a dangerous condition, and (3) failing to inspect the premises and to discover the defective conditions. Count V ("Gross Negligence/Conscious Disregard--Joint Venture") sought damages from both defendants, jointly and severally, for gross negligence or recklessness on a joint venture theory. Count VI ("Gross Negligence/Conscious Disregard--Northstar Entertainment, Inc.") sought damages from Northstar based on Northstar's gross negligence or recklessness in failing to inspect the bungee jumping equipment and in failing to attach the bungee cord to the crane or cage assembly prior to Hatch's jump. Count VII ("Gross Negligence/Conscious Disregard--V.P. Fair Foundation, Inc.") sought damages from V.P. Fair based on its gross negligence or recklessness in failing to inspect Northstar's bungee jumping operation. Count VIII ("Premises Liability--Defendant V.P. Fair Foundation, Inc.") sought damages from V.P. Fair based on its gross negligence or recklessness in (1) inviting the public onto its premises when the premises were not in a reasonably safe condition, (2) failing to warn the public of the existence of a dangerous condition on the premises, and (3) failing to inspect the premises and to discover the defective condition.

Prior to trial, defendants filed motions for summary judgment. The court granted summary judgment in favor of defendants on Counts I and V, finding no joint venture because there was no agreement between V.P. Fair and Northstar to share profits and losses from the bungee jumping operation and because V.P. Fair did not exercise sufficient control over the bungee jumping operation. The court also granted summary judgment in favor of Northstar on Count II, finding that the release signed by Hatch barred his negligence claim against Northstar. As to Count IV, the court found that V.P. Fair could be liable under a premises liability theory only if bungee jumping was an inherently dangerous activity. It entered summary judgment in favor of V.P. Fair on Count VII because it did not state a viable claim against V.P. Fair independently of Count IV. It also entered summary judgment on Count VIII.

Hatch proceeded to trial on Counts IV and VI. ³ The questions of whether Northstar acted recklessly and whether bungee jumping constituted an inherently dangerous activity were submitted to the jury. On the recklessness claim, the jury returned a verdict in favor of Hatch and against Northstar. The jury also found that bungee jumping was an inherently dangerous activity and returned a verdict in favor of Hatch and against V.P. Fair on the premises liability claim. The jury awarded Hatch $5,000,000 in damages, and the trial court entered a judgment against defendants in that amount. Defendants filed post-trial motions for judgment notwithstanding the verdict, new trial, and remittitur. The trial court granted V.P. Fair's motion for judgment notwithstanding the verdict and overruled the remaining post-trial motions. This appeal followed.

On appeal, Hatch contends that the trial court erred in: (1) granting V.P. Fair's motion for judgment notwithstanding the verdict on the basis that bungee jumping is not an inherently dangerous activity, (2) sustaining V.P. Fair's motion for summary judgment on the ground that defendants were not engaged in a joint venture, (3) sustaining V.P. Fair's motion for summary judgment on the premises liability claim based on retained control because V.P. Fair did not surrender sufficient control of the premises to avoid liability for the dangerous condition...